Rita Davis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01a01390 (E.E.O.C. May. 12, 2000)

01a01390

05-12-2000

Rita Davis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rita Davis, )

Complainant, )

)

v. )

) Appeal No. 01A01390

William J. Henderson, ) Agency No. 4-J-606-0314-99

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On November 29, 1999, complainant filed an appeal with this Commission

from a final agency decision (FAD) pertaining to her complainant of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The

Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. �1614.405).

Complainant contacted the EEO Counselor regarding claims of discrimination

based on disability. Informal efforts to resolve complainant's concerns

were unsuccessful. Subsequently, on September 24, 1999, complainant

filed a formal complaint. The agency framed the claim as follows:

On November 19, 1998 to present, complainant was told to call before

reporting to work each day and sent to other stations.

The agency dismissed the complaint on the grounds that it was untimely

filed, in a FAD issued on October 19, 1999. Specifically, the agency

determined that complainant received a Notice of Right to File a Formal

Complaint on September 8, 1999; and that complainant did not file her

complaint until sixteen days later, on September 24, 1999. The agency

therefore determined that the complaint was filed beyond the fifteen

day time limitation.

On appeal, complainant argues that she called the EEO office and was told

to send in her complainant even though it was a day late, at which time,

complainant faxed the complaint to the agency. Further, complainant

contends she had recently been under a doctor's care for stress.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that

an agency shall dismiss a complaint which fails to comply with the

applicable time limits contained in Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as 29 C.F.R. � 1614.106), which,

in turn, requires the filing of a formal complaint within fifteen (15)

days of receiving notice of the right to do so.

The record in this case contains a copy of Domestic Return Receipt showing

that complainant received the Notice of Right to File on September 8,

1999. The complaint was not filed until September 24, 1999, one day

beyond the fifteen day time limitation stated in the Notice. Therefore,

we find that the complaint was untimely. On appeal, complainant admits to

the late filing, but argues that the EEO office advised her nonetheless

to file the complaint. Assuming that the EEO office told complainant

to send in her complaint after the fifteen day period had passed, we

do not find this is sufficient reason to toll or waive the time limit.

The EEOC Management Directive (MD) 110, requires that �[u]nder no

circumstance should the Counselor attempt to dissuade a person from

filing a complaint.� EEOC Management Directive (MD) 110, as revised,

November 9, 1999, Chapter 2, page 2-9. Further, complainant contends

that she had been under a doctor's care for extreme stress. When a

complainant claims that a physical condition prevents her from meeting

a particular filing deadline, the Commission has held that in order to

justify an untimely filing, the complainant must be so incapacitated

by the condition as to render her physically unable to make a timely

filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8. 1989).

The same is true regarding claims of incapacity related to psychiatric

or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700

(October 29. 1992). Here, the record contains no documentation reflecting

that complainant was so incapacitated during the applicable fifteen-day

period as to prevent her from timely filing her complaint. Therefore,

we find complainant has failed to present adequate justification for

extending the filing period.

Accordingly, the agency's decision to dismiss appellant's complaint as

untimely was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to

file a civil action. Both the request and the civil action must be

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

May 12, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.